Opinion: Columnists

Pomerance: Who should make the big decisions in government?

"The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvania's public natural resources are the common property of all of the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all these people." So reads the 1971 amendment to Article I, Section 27, of the Pennsylvania state constitution.

This amendment defines the balance of power between the state and local governments with regard to fracking. As John Dernbach, who runs a Pennsylvania environmental law center, put it, "The Pennsylvania Supreme Court ruled the state says how, and the local government has the right to say where." (See Mark Jaffe's article in last Sunday's Denver Post and Monday's Camera.)

This balance is in marked contrast to Colorado, where the state government, supported by the courts, seems to appropriate local powers whenever possible. This most recently occurred when Longmont's fracking ban did not survive judicial scrutiny. Apparently drilling is a matter of "statewide concern," so local governments cannot use their land use powers to deal with the issues that Gov. Hickenlooper and the Colorado Oil and Gas Conservation Commission (COGCC) would rather ignore.

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This state's regulation is weak. Per a recent Post article, up until mid-2013, drillers didn't have to report spills of less than 840 gallons! Even now, spills of less than 210 gallons go unreported, even if right next to your house, farm or day care. And only a tiny fraction of reported spills are penalized. The real value of our limited and non-replaceable supply of natural gas is for fueling backup generation for renewable energy; it should not be extracted in this semi-unregulated fashion as a vehicle for politicians to claim job growth, leaving behind damage and destruction.

Because of this one-sidedness, Colorado needs some form of environmental rights inserted into our constitution. This is what Initiative 89 will do, if it makes the ballot. But we cannot rely on our courts to be as deferential as Pennsylvania's. In the infamous Telluride case, the Colorado Supreme Court threw out Telluride's rent control (and affordable housing) requirements because the court and Legislature viewed this as a state-level issue! So Initiative 89 includes the following language, "If any local law or regulation...conflicts with a state law or regulation, the more restrictive and protective law or regulation governs."

Preemption by unelected bodies is not limited to the COGCC. The High Performance Transportation Enterprise (HPTE) board will decide whether the I-70 widening in Denver is now going to be subject to private company control of the tolling, just like US 36. This will significantly reduce the flexibility to use tolls to pay for other transportation costs, a very serious loss. And, in spite of Hickenlooper's executive order allegedly promoting transparency, no other elected officials have a real say. Hopefully the Legislature will be more wary about giving agencies decision-making power with no checks and balances.

In cities, we have the tougher challenge: Who should make the big decisions, the elected officials or the voters? If a city council gets out of hand, the citizens can use the referendum process, as happened with the Washington School redevelopment, where the proposal was apparently in violation of the law against spot zoning. But what if the decisions themselves are legal and incremental, but the effect over time is massive?

Over the last 20 years, Boulder has made many such decisions about how much growth will occur. These decisions cumulatively lay out a future that is very far from what many of us want to see our town become. And more changes are coming. For example, one new proposal would allow city rights-of-way dedications by a development to be included when calculating the number of allowable units, reportedly increasing some densities by 25 percent. Another would increase some unit occupancy limits to six or more. Is this really what we want?

Who makes these decisions goes to the very nature of representative government, and is well illustrated by the current TABOR lawsuit. The anti-TABOR plaintiffs argue that elected legislators should make the essential tax decisions. The TABOR defenders say that the people reserved this fundamental right for themselves. Similarly, we are facing critical decisions about the future of our city. This is Boulder, so it's time for our council to let the citizens decide what kind of future we want.

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